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Quebec’s use of notwithstanding clause in language law opens constitutional debate

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2 years ago

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MONTREAL — When federal Justice Minister David Lametti reacted last week to the adoption of Quebec’s language law reform, he took aim at the provincial government’s proactive use of the notwithstanding clause to shield the law from constitutional challenges.

Lametti and other critics of Bill 96 say the government’s use of that clause — Section 33 of the Canadian Charter of Rights and Freedoms — shuts down debate and prevents a proper judicial review of the legislation. The proactive use of Section 33, which permits a government to override certain provisions of the Constitution, is an “unintended negative consequence in our political system,” he said.

The Quebec government, meanwhile, says its use of the clause is legitimate and necessary to protect laws that are supported by the majority of Quebecers. The government calls Section 33 “the parliamentary sovereignty provision.”

Bill 96, among other things, limits the use of English — one of Canada’s two official languages — in the public service and permits inspectors to conduct searches and seizures in businesses without warrants. The proactive use of Section 33 means the courts cannot declare Bill 96 unconstitutional because of its potential violations of certain fundamental rights included in the Charter.

The two other recent cases where the notwithstanding clause was invoked outside of Quebec — by the Ontario government in 2021 and by Saskatchewan in 2017 — it was used to override court decisions. Quebec is the only province to invoke the clause before judicial review.

The notwithstanding clause, Lametti told reporters, “was meant to be the last word in what is, in effect, a dialogue between the courts and legislatures. It wasn’t meant to be the first word.”

Emmett Macfarlane, a political science professor at the University of Waterloo who studies the Supreme Court’s role in shaping public policy, said there’s nothing in the Charter that outlines when Section 33 can be used. He said, however, that he doesn’t think its pre-emptive use was envisioned when the Charter was drafted in 1982.

“Quebec is right to say, legally, we can use it pre-emptively and they’re at least partially right to say the notwithstanding clause is a parliamentary sovereignty provision, but it’s also an unprincipled use of the notwithstanding clause,” Macfarlane said in an interview Friday.

“It’s a political manoeuvre to avoid having that negative judicial ruling that would be inevitable if they hadn’t used the notwithstanding clause.”

Constitutional lawyer Julius Grey argued before the Superior Court against Quebec’s secularism law — known as Bill 21 — which bans certain government employees from wearing religious symbols at work. That case is before the Court of Appeal. He said in an recent interview that the question as to how Section 33 can be used will be decided when the case reaches the Supreme Court.

Grey said he hopes the high court will rule that provinces can’t use the clause as they please.

“Parliamentary sovereignty is precisely what the Charter wants to get away from,” Grey said. “We all understand that parliamentary sovereignty has certain dangers — the rule of the majority can turn into the tyranny of the majority.”

Benoît Pelletier, a cabinet minister in the Quebec Liberal government of Jean Charest, said he supports the Quebec government’s use of the notwithstanding clause, a tool he said is “at the heart” of the separation of powers in Canada’s legal system.

Section 33, he said, was included in the Charter to preserve parliamentary sovereignty but also to maintain the balance of power between the judiciary and the government.

For Pelletier, the proactive use of the provision isn’t a problem because the courts can still review the legislation — a Superior Court ruling on Bill 21 that upheld most of the law was more than 200 pages, he said. In that ruling, Superior Court Justice Marc-André Blanchard found that Bill 21 violates fundamental freedoms such as the freedom of religion, but he couldn’t strike those elements of the bill down because the law was shielded by Section 33.

Pelletier said he thinks the Quebec government is making “moderate” use of Section 33. “As a province, or as a nation, or as a political unit, it’s normal that Quebec makes collective choices that are different from those of the other provinces.”

Patrick Taillon, a constitutional law professor at Université Laval, said Quebec has been something of a “champion” of using Section 33. The province has used it more than others, he said in an interview Friday, “because it allows our elected officials to exercise a certain form of autonomy.”

The Supreme Court, he added, has already upheld the preventive use of the notwithstanding clause, in a 1988 decision involving Quebec’s French-language signage legislation. That decision made clear that the court’s role was not to decide whether it was right or wrong to use Section 33 but only whether it conformed to the Constitution.

Macfarlane said it’s not just Quebec’s use of Section 33 that concerns him. The Ontario government’s 2021 use of the notwithstanding clause to protect a campaign finance law was also problematic, he said.

“I don’t think other provinces are immune to these populist impulses,” he said. “But there obviously is something distinct about Quebec’s record with the notwithstanding clause relative to all the other provinces.

This report by The Canadian Press was first published May 29, 2022.

 

Jacob Serebrin, The Canadian Press

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NDP and B.C. Conservatives locked in tight battle after rain-drenched election day

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4 hours ago

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October 19, 2024

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VANCOUVER – Predictions of a close election were holding true in British Columbia on Saturday, with early returns showing the New Democrats and the B.C. Conservatives locked in a tight battle.

Both NDP Leader David Eby and Conservative Leader John Rustad retained their seats, while Green Leader Sonia Furstenau lost to the NDP’s Grace Lore after switching ridings to Victoria-Beacon Hill.

However, the Greens retained their place in the legislature after Rob Botterell won in Saanich North and the Islands, previously occupied by party colleague Adam Olsen, who did not seek re-election.

It was a rain-drenched election day in much of the province.

Voters braved high winds and torrential downpours brought by an atmospheric river weather system that forced closures of several polling stations due to power outages.

Residents faced a choice for the next government that would have seemed unthinkable just a few months ago, between the incumbent New Democrats led by Eby and Rustad’s B.C. Conservatives, who received less than two per cent of the vote last election

Among the winners were the NDP’s Housing Minister Ravi Kahlon in Delta North and Attorney General Niki Sharma in Vancouver-Hastings, as well as the Conservatives Bruce Banman in Abbotsford South and Brent Chapman in Surrey South.

Chapman had been heavily criticized during the campaign for an old social media post that called Palestinian children “inbred” and “time bombs.”

Results came in quickly, as promised by Elections BC, with electronic vote tabulation being used provincewide for the first time.

The election authority expected the count would be “substantially complete” by 9 p.m., one hour after the close of polls.

Six new seats have been added since the last provincial election, and to win a majority, a party must secure 47 seats in the 93-seat legislature.

There had already been a big turnout before election day on Saturday, with more than a million advance votes cast, representing more than 28 per cent of valid voters and smashing the previous record for early polling.

The wild weather on election day was appropriate for such a tumultuous campaign.

Once considered a fringe player in provincial politics, the B.C. Conservatives stand on the brink of forming government or becoming the official Opposition.

Rustad’s unlikely rise came after he was thrown out of the Opposition, then known as the BC Liberals, joined the Conservatives as leader, and steered them to a level of popularity that led to the collapse of his old party, now called BC United — all in just two years.

Rustad shared a photo on social media Saturday showing himself smiling and walking with his wife at a voting station, with a message saying, “This is the first time Kim and I have voted for the Conservative Party of BC!”

Eby, who voted earlier in the week, posted a message on social media Saturday telling voters to “grab an umbrella and stay safe.”

Two voting sites in Cariboo-Chilcotin in the B.C. Interior and one in Maple Ridge in the Lower Mainland were closed due to power cuts, Elections BC said, while several sites in Kamloops, Langley and Port Moody, as well as on Hornby, Denman and Mayne islands, were temporarily shut but reopened by mid-afternoon.

Some former BC United MLAs running as Independents were defeated, with Karin Kirkpatrick, Dan Davies, Coralee Oakes and Tom Shypitka all losing to Conservatives.

Kirkpatrick had said in a statement before the results came in that her campaign had been in touch with Elections BC about the risk of weather-related disruptions, and was told that voting tabulation machines have battery power for four hours in the event of an outage.

— With files from Brenna Owen

This report by The Canadian Press was first published Oct. 19, 2024.

The Canadian Press. All rights reserved.

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Breakingnews: B.C. Conservative Leader John Rustad elected in his riding

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6 hours ago

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October 19, 2024

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VANDERHOOF, B.C. – British Columbia Conservative Leader John Rustad has been re-elected in his riding of Nechako Lakes.

Rustad was kicked out of the Opposition BC United Party for his support on social media of an outspoken climate change critic in 2022, and last year was acclaimed as the B.C. Conservative leader.

Buoyed by the BC United party suspending its campaign, and the popularity of Pierre Poilievre’s federal Conservatives, Rustad led his party into contention in the provincial election.

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Early tally neck and neck in rain-drenched British Columbia election

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6 hours ago

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October 19, 2024

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VANCOUVER – Predictions of a close election were holding true in British Columbia on Saturday, with early returns showing the New Democrats and the B.C. Conservatives neck and neck.

Conservative Leader John Rustad was elected in Nechako Lakes, and 20 minutes after polls closed, his party was elected or leading in 46 ridings, with the NDP elected or leading in 45.

Among the early winners were the NDP’s Ravi Kahlon in Delta North and Niki Sharma in Vancouver-Hastings, as well as the Conservatives’ Bruce Banman in Abbotsford South.

It was a rain-drenched election day in much of the province.

Voters braved high winds and torrential downpours brought by an atmospheric river weather system that forced closures of several polling stations due to power outages.

Residents faced a choice for the next government that would have seemed unthinkable just a few months ago, between the incumbent New Democrats led by David Eby and Rustad’s B.C. Conservatives, who received less than two per cent of the vote last election

Green Leader Sonia Furstenau has acknowledged her party won’t win, but she’s hoping to retain a presence in the legislature, where the party currently has two members.

Elections BC has said results are expected quickly, with electronic vote tabulation being used provincewide for the first time.

The election authority expected most votes to be counted by about 8:30 p.m., and that the count would be “substantially complete” within another half-hour.

Six new seats have been added since the last provincial election, and to win a majority, a party must secure 47 seats in the 93-seat legislature.

There had already been a big turnout before election day on Saturday, with more than a million advance votes cast, representing more than 28 per cent of valid voters and smashing the previous record for early polling.

The wild weather on election day was appropriate for such a tumultuous campaign.

Once considered a fringe player in provincial politics, the B.C. Conservatives stand on the brink of forming government or becoming the official Opposition.

Rustad’s unlikely rise came after he was thrown out of the Opposition, then known as the BC Liberals, joined the Conservatives as leader, and steered them to a level of popularity that led to the collapse of his old party, now called BC United — all in just two years.

Rustad shared a photo on social media Saturday showing himself smiling and walking with his wife at a voting station, with a message saying, “This is the first time Kim and I have voted for the Conservative Party of BC!”

Eby, who voted earlier in the week, posted a message on social media Saturday telling voters to “grab an umbrella and stay safe.”

Two voting sites in Cariboo-Chilcotin in the B.C. Interior and one in Maple Ridge in the Lower Mainland were closed due to power cuts, Elections BC said, while several sites in Kamloops, Langley and Port Moody, as well as on Hornby, Denman and Mayne islands, were temporarily shut but reopened by mid-afternoon.

Karin Kirkpatrick, who is running for re-election as an Independent in West Vancouver-Capilano, said in a statement that her campaign had been in touch with Elections BC about the risk of weather-related disruptions, and was told that voting tabulation machines have battery power for four hours in the event of an outage.

West Vancouver was one of the hardest hit areas for flooding, and Kirkpatrick later said on social media that her campaign had been told that voters who couldn’t get to a location to cast their ballot because of the extreme weather could vote through Elections BC by phone.

— With files from Brenna Owen

This report by The Canadian Press was first published Oct. 19, 2024.

The Canadian Press. All rights reserved.

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